Willis Hon

Associate Nossaman LLP

Phone: 415-398-3600

Email: whon@nossaman.com

Willis is an associate in the firm's Water Practice Group. He represents clients before the California Public Utilities Commission and advises clients on a range of matters, including utility regulation, inverse condemnation, public entity governance, and environmental law.

Tara Paul

Associate Nossaman LLP

Email: tpaul@nossaman.com

Tara's practice is focused on water industry issues, and her experience includes representing clients in complex water rights litigation and groundwater contamination disputes.

Public water systems in California are heavily reliant on electricity to pump, treat and deliver safe drinking water to customers every day. Over the past few years, catastrophic wildfires in California have led to an increased use of public safety power shutoff, often called PSPS events or known as de-energization events, as a means for electric utilities to mitigate the risk of their infrastructure causing wildfires.

During these PSPS events, electric utilities proactively shutdown power to specific power lines in order to limit the impact or damage of these lines to communities in situations where the utilities are aware of dangerous weather conditions when wildfires are more likely to occur and spread quickly. These PSPS events are separate and distinct from unanticipated outages, including the recent rolling blackouts in August. Nonetheless, PSPS events present considerable challenges for public water systems that need electricity to continue to operate.

With California experiencing an increase in wildfire events due to a number of factors (including an extended period of drought, increased fuel for fires, and unprecedented conditions that are leading to extreme weather events), public water systems should expect more wildfires and, consequently, more PSPS events in the future. As former Gov. Jerry Brown noted at the end of his most recent term, the challenges associated with wildfires are part of the "the new normal that we have to face." This article provides an overview of the regulatory framework governing PSPS events and identifies resources available to help prepare operators of public water systems in California for this "new normal."

Background and Regulatory Framework

The California Public Utilities Commission, which regulates investor-owned electric utilities, has held that Public Utilities Code Sections 451 and 399.2(a) give electric utilities authority to shut off electric power in order to protect public safety. This authority includes shutting off power for the prevention of fires where strong winds, heat events, and related conditions are present. Importantly, while the commission sets forth certain guidance on when to conduct PSPS events, it is ultimately the electric utility's decision to determine when and where power is shut off.

Though the recent focus on PSPS events was brought about by catastrophic wildfires in 2017 and 2018, the commission began articulating the regulatory framework for this practice in its Decision 12-04-024 for San Diego Gas & Electric Company adopted in April 2012. In that decision, the commission affirmed the fact that SDG&E was authorized to conduct PSPS events under Public Utilities Code Sections 451 and 399.2(a) in order to protect public safety and set forth certain rules and guidelines, including requirements for reasonableness, notification, mitigation and reporting by SDG&E for its PSPS events.

Following the destructive wildfire season in 2017, the commission issued Resolution ESRB-8 in July 2018, which extended Decision 12-04-024's reasonableness, public notification, mitigation and reporting requirements to all investor-owned electric utilities and strengthened the existing guidelines. Resolution ESRB-8 required the investor-owned electric utilities to assist critical facility customers to evaluate their need for backup power and notes that the utilities may need to provide generators to critical facilities that are not well prepared for a disruption in service.

In September 2018, the governor approved Senate Bill 901. Among other things, SB 901 added new provisions to Public Utilities Code Section 8386, requiring all California electric utilities to prepare and submit Wildfire Mitigation Plans that describe the utilities' plans to prevent, combat and respond to wildfires affecting their service territories. In particular, Section 8386(c) included requirements for the new Wildfire Mitigation Plans to include protocols for de-energizing portions of the electrical distribution system that consider the associated impacts on public safety and to include appropriate and feasible procedures for notifying customers who may be impacted by the de-energizing of electrical lines.

In December 2018, the commission opened rulemaking proceeding R.18-12-005, where it is continuing to develop and refine its PSPS policies and guidelines today. In May 2019, the commission adopted Decision 19-05-042, which expanded upon Resolution ESRB-8 and established a set of interim guidelines for PSPS events ahead of the 2019 wildfire season. Based on the experience of utilities and customers during PSPS events that occurred during the 2019 wildfire season, the commission adopted Decision 20-05-051 in May 2020 to provide certain updates and refinements to its PSPS guidelines. Some of the most notable components of the commission's PSPS guidelines relevant to public water systems in California are the following:

Public Safety Partner Definition: The PSPS guidelines expressly include water and wastewater service providers under its definition of the term "Public Safety Partner." This puts public water systems into the first wave of advance notifications for anticipated PSPS events before the broader notification to other affected groups and the general public. This allows for greater ability for public water systems to plan and prepare for such events. The PSPS guidelines set forth the following notification timeline, (though it also recognizes that in certain circumstance advance notification may not be possible):

• 48-72 hours in advance of anticipated de-energization: notification of public safety partners/priority notification entities

• 24-48 hours in advance of anticipated de-energization: notification of all other affected customers/populations

• 1-4 hours in advance of anticipated de-energization, if possible: notification of all affected customers/populations

• When de-energization is initiated: notification of all affected customers/populations

• Immediately before re-energization begins: notification of all affected customers/populations

• When re-energization is complete: notification of all affected customers/populations

Critical Facilities and Critical Infrastructure Definition: The PSPS guidelines adopt a definition of "Critical Facilities/Critical Infrastructure" that identifies facilities or infrastructure requiring advance notice and assistance with respect to backup generation needs. The definition expressly includes "Facilities associated with the provision of drinking water or processing of wastewater including facilities used to pump, divert, transport, store, treat and deliver water or wastewater." This recognizes the importance of public water systems and mandates certain protocols to mitigate impacts to such critical facilities and critical infrastructure.

PSPS Working Groups: The PSPS guidelines require each of the large investor-owned electric utilities to convene, at least quarterly, regionalized working groups. Many stakeholders are invited to participate in such working groups, including "water service providers." The purpose of these working groups is to ensure there is a formal environment to share lessons learned between the impacted communities and the investor-owned electric utilities.

PSPS Advisory Board: The PSPS guidelines require each of the large investor-owned electric utilities to establish advisory boards that provide hands-on, direct advisory functions regarding all aspects of de-energization. Similar to the mandated working groups, the service territory-wide advisory boards should consist of a variety of stakeholders, including "water service providers." The advisory boards are intended to develop best practices for PSPS issues and safety, community preparedness, regional coordination and the optimal use of existing and emerging technologies.

Backup Generation Needs: The PSPS guidelines require each investor-owned electric utility to coordinate with local, tribal, federal and state government agencies, and other private and public sector parties to identify transportation, communications and water system infrastructure throughout its service territory in need of backup generation.

Moving forward, the commission is expected to continue to refine its PSPS policies and guidelines and will develop a general order that will codify those guidelines and directives. The commission explained that the purpose of developing such a general order is to eventually have one primary authority that provides guidelines and directives to the investor-owned electric utilities regarding PSPS events.

Where they receive electricity from an investor-owned electric utility and anticipate PSPS events to impact them in the future, public water system operators should take advantage of the opportunities created in the commission's PSPS guidelines to develop a working relationship with those electricity providers. For larger public water systems, this may take the form of formal participation in the working groups or advisory boards mandated under the PSPS guidelines. This enables them to have a seat at the table to better craft the PSPS protocols implemented by the electric utility to be more responsive to the needs of the public water system.

The definitions of "Public Safety Partner" and "Critical Facility/Critical Infrastructure" under the PSPS guidelines are also crucial in allowing public water systems to receive advance notification of upcoming PSPS events. This advance notification is important because it allows public water systems to put resources in place ahead of time, in order to better mitigate the impact of PSPS events (including sending operational staff and backup generators to impacted facilities). Developing a solid working relationship with the electricity provider and the establishing strong internal procedures will allow public water system operators to make the most out of the precious time they have before the power is shut off.

It is also critical to note that the PSPS guidelines do not mandate participation directly from public water systems operators, but merely require investor-owned electric utilities to provide opportunities and tools for public waters systems to better prepare for PSPS events. Ultimately, it is up to the public water system operator to take advantage of those opportunities.

PSPS Resources for California Public Water System Operators

While the challenges for each public water system will necessarily differ based on the particular circumstances for that system, state and federal agencies have been working to develop resources tailored for public water systems to help plan and prepare for future PSPS events, including:

Commission PSPS Resource Page: The commission maintains a page on its website that centralizes most of the materials it has produced relating to PSPS events. This webpage provides a summary of the actions taken with respect to PSPS events and includes links to the PSPS Post-Event Reports filed by the electric utilities following each PSPS event as required by the Commission's PSPS guidelines.

State Water Resources Control Board PSPS Resource Page: The State Water Resources Control Board maintains a page on its website that compiles many of the PSPS-related resources online, specifically for public water systems. This includes a document titled "Options for Consideration in the Face of Wildfires and Public Safety Power Shutoff 2020," which identifies several steps that public water systems in California should be considering and doing to prepare for wildfires and PSPS events.

PSPS Incident Action Checklist for Power Outages: The U.S. Environmental Protection Agency put together an Incident Action Checklist to help water and wastewater systems prepare for power outages. While the checklist is meant for power outages more generally, many of the topics and action items covered equally apply to PSPS events as well.

PSPS Standard Operating Procedure Template: The EPA also developed a PSPS Standard Operating Procedure template to assist drinking public water systems in California better plan, prepare for, respond to, and recover from a PSPS event triggered by weather and environmental conditions that may lead to wildfire. The EPA template is split into several phases of a PSPS event (including Blue Sky Planning, 48-Hour PSPS Notification, Zero Hour Power Out, 24 Hours Without Power, Continued Power Outage, and PSPS Recovery), with each guidance in each phase split into a number of important topics (generators and backup power, fuel, communication, partnerships, SCADA, staffing, access and safety).

CalWARN: The mission of the California Water/Wastewater Agency Response Network is to support and promote statewide emergency preparedness, disaster response and mutual assistance processes for public and private water and wastewater utilities. Signatory members of CalWARN are able to leverage and share resources to help prepare for PSPS events and other disasters.

Preparing for PSPS events is yet another issue that public water systems in California must tackle on top of the needing to modernize aging infrastructure, address new emerging contaminants, and so many other challenges. The ongoing COVID-19 pandemic has exacerbated the urgency of this effort for many public water systems, as Californians sheltering-in-place rely on having access to safe and reliable water in their homes, even when the power is shut off due to a PSPS event. Therefore, public water system operators should take advantage of the resources outlined above, develop a robust working relationship with their electricity provider, and follow the continued refinement of the commission's PSPS guidelines closely. 

The views expressed herein represent those of the authors and not necessarily those of Nossaman LLP or its Partners or employees.